Bricker's Administrators v. Dull

82 Pa. 328, 1876 Pa. LEXIS 234

• Court: Supreme Court of Pennsylvania
• Decided: October 9, 1876
• Status: Published

Opinion

Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

This suit was brought to August Term 1861. A general declaration in assumpsit was filed on the 9th of October 1863, and on the 24th of that month pleas of non-assumpsit and payment with leave were entered by the defendant. At that point the record stops until the 6th of May 1873, when the cause was ordered for trial. It was tried the next day, a verdict and judgment were obtained, a writ of error was taken, and in July 1874, the judgment was reversed. After the return of the record, on the 12th of February 1876, the plaintiffs were permitted to file a special declaration in which their cause of action was specifically set forth. On the 2d of January 1864, after the cause was at issue, the defendant’s counsel gave notice to the counsel of James Bricker, then living, and the plaintiff on the record, to file within twenty days any paper or papers on which the action was founded, and to file, also, within twenty days, a written statement of the account or demand proposed to be given in evidence and relied on at the trial. These notices were authorized by the 67th and 68th rules of the Common Pleas, which provided that in case of failure to file the papers and statement required, no evidence of such papers or of the plaintiff’s account or demand should be received. No action was taken in pursuance of the notices on the part of the plaintiff, and it was to meet the exigencies of the case created by this neglect that the application to amend the declaration was made. At the last trial the court below were of the opinion that the defect of the record caused by the omission to comply with the provisions of the rulés was not cured by the amendment after the long delay, and accordingly they rejected the evidence offered and directed a verdict for the defendant.

It appears from the pleadings that this controversy grew out of a transaction between James Bricker and the firm of Collins, Dull & Co., who were contractors for the construction of the road of the Bedford Railroad Company. Bricker furnished goods and supplies to three sub-contractors, Keating, McCabe and Dhrew, and for these the plaintiffs alleged that Collins, Dull & Co. agreed to pay out of the estimates on the sub-contracts. The special declaration set out the amounts assumed by the defendant’s firm on account of Keating at $524.20; on account of McCabe at $240; and on account of Dhrew at $1259. The aggregate of the principal sums was $2023.20. This was a pretty significant amount, and it was claimed out of a somewhat complicated transaction. There was a lapse of more than twelve years between the requisition for notice of the plaintiff’s demand and the amendment of the declaration. More than nine years expired after the requisition before any step was taken to secure the trial of the cause. If the specification of the claim had been filed within a reasonable time, even after the expiration of the twenty days, or if, in lieu of the specification, the application to amend the declaration had,been reasonably prompt, adequate relief would undoubtedly have been afforded by the court below- Rut a delay of twelve years was fatal to the success of the efforts of the plaintiffs to cure a defect arising from their intestate’s original neglect. In The Farmers’ and Mechanics’ Rank v. Israel, 6 S. & R. 293, a delay of nine years in applying for leave to amend a declaration was said to be- “ out of all reason,” and the same remark may be well applied to a casé like this, involving an inquiry into the accounts of five distinct parties interested in a railroad contract, which, so far as the purposes of this suit are concerned, is shown by the record to have been executed for a period of fifteen years. The fact that the amendment was allowed was not enough to justify the admission of the evidence. Judgment affirmed.